Interfaith Marriage in Islam: An Examination of the Legal Theory Behind the Traditional and Reformist Positions * ALEX B. LEEMAN INTRODUCTION Leo Barajas was a thirty-four-year-old American contractor from Texas working for the U.S. government managing reconstruction projects in Iraq.1 Though not particularly religious at home, he called on the Almighty often enough during his time in Baghdad. “I had to wake up by faith, sleep by faith and do my job by faith,” he said.2 In August 2003, Leo met a striking young Iraqi woman named Mariam Ghadeer. In a short time, she had stolen his heart. By the end of 2003, wedding plans were underway. It was not until this time that Mariam told Leo he would have to convert to Islam. Leo refused. After many tears, Mariam concluded, “I guess we can’t get married.”3 This Note explores the rules in Islam governing marriage, specifically those restricting marriages in which one spouse is non-Muslim. The rules for Muslim women who wish to marry outside the faith are more restrictive than the rules governing Muslim men wishing to marry a non-Muslim.4 Some modern Islamic scholars and commentators argue that the pluralistic nature of modern society justifies a reevaluation of these rules, and that such action is not precluded by Islamic law. Muslim women, they contend, should have marital choice similar to that of their male counterparts.5 Many Islamic countries are facing the challenges of modernity and social change.6 Interfaith marriage is one of many issues currently pitting staunch traditionalists against modern reformists within the Muslim community. The goal of this Note is to identify the sources from which Islamic law is derived and the processes through which it is * J.D. Candidate, 2009, Indiana University Maurer School of Law — Bloomington. Thank you to Professor Timothy Waters for inspiring this Note, and to my wife Katie for her loyalty and support despite the many long hours of neglect she has suffered at the hands of the law school. 1. The story of Leo Barajas and Mariam Ghadeer is told in Christopher Dickey & Jessica Ramirez, Love and War, NEWSWEEK, Oct. 22, 2007, at 28. 2. Id. at 33. 3. Id. Ultimately, Leo agreed to convert to Islam, at least temporarily, so the couple could marry. 4. See infra Parts II.A, II.B. 5. See infra Part III.A. 6. In many ways, forces in the Muslim world are pulling in opposite directions. On one hand, advocates of reform, modernism, and freedom are making gains in many otherwise conservative Islamic countries. See generally Scott MacLeod, Signs of Freedom, TIME (EUROPE), May 14, 2006, at 54, available at http://www.time.com/time/europe/html/060522/story.html (noting that “freedom seekers” across the Middle East are coming forward with “unprecedented determination to demand change”). On the other hand, hard-line traditionalists advocate for a worldwide conservative Islamic Revolution similar to the one that occurred in Iran in 1979. See generally Ramita Navai, President Invokes New Islamic Wave, TIMES (London), June 30, 2005, at 37. 744 INDIANA LAW JOURNAL [Vol. 84:743 interpreted.7 Readers will then be able to analyze this issue using the principles of Islamic jurisprudence, and engage in the rich debate already taking place. Radwan Masmoudi, the president of the Center for the Study of Islam and Democracy in Washington, D.C., noted: “Western societies and policymakers . should appreciate that Muslim societies and lawmakers have every right to reconcile their legal system with their moral values. Instead of voicing alarmist condemnations . , Westerners should pay closer attention to the lively debate on law and morality within Muslim societies.”8 As John L. Esposito, professor of Islamic Studies and director of the Prince Alwaleed Talal Center for Muslim-Christian Understanding at Georgetown University, observed, effective reform is dependent upon acceptance by the greater Muslim community. Such reforms must be rooted in a “consistent Islamic rationale,” and sound Islamic legal principles in order to ensure both “inner consistence” and “historical continuity” with Islamic tradition.9 Part I of this Note will discuss the role of religious law in Islamic society and the sources from which that law is derived. Next, Part II examines the rules governing interfaith marriage in Islam, including the origins of those rules and the problems they create for modern Muslims. Part III explores methodology for interpreting Islamic law and looks at the ways some modern scholars have tried to reform Islam’s interfaith marriage rules. Finally, the Note concludes by examining the feasibility of both the traditional and reformist positions, ultimately suggesting that there is room in Islamic jurisprudence for differing opinions. I. SOURCES OF LAW IN ISLAM “Law, in classical Islamic theory, is the revealed will of God, a divinely ordained system preceding and not preceded by the Muslim state, controlling and not controlled by Muslim society.”10 In Islam, law originates from God. The faithful, in turn, seek to discover and understand that law, not to create it themselves.11 To comprehend the role of government and the process for affecting change in Islam-based legal systems, it is 7. This Note specifically follows the jurisprudential principles of Sunni Islam, to which the vast majority of Muslims adhere. See BBC News Quick-Guide: Islam, http://news.bbc.co.uk/2/hi/middle_east/5238014.stm (stating that ninety percent of the world’s billion-plus Muslims adhere to the Sunni sect). However, much of this analysis is also applicable to other Islamic sects. 8. DAVID SMOCK, U.S. INST. OF PEACE, APPLYING ISLAMIC PRINCIPLES IN THE TWENTY- FIRST CENTURY 5 (2005), available at http://www.usip.org/pubs/specialreports/sr150.pdf. 9. JOHN L. ESPOSITO, WOMEN IN MUSLIM FAMILY LAW 127 (2001). Wisely, former U.S. ambassador to Israel and Syria Edward P. Djerejian observed: “The struggle to determine the balance between tradition and the forces of modernity and change in the Muslim world will have to come from within the framework of their own culture and societies.” EDWARD P. DJEREJIAN, DANGER AND OPPORTUNITY: AN AMERICAN AMBASSADOR’S JOURNEY THROUGH THE MIDDLE EAST 15 (2008). 10. N.J. COULSON, A HISTORY OF ISLAMIC LAW 1–2 (1964). See, e.g., AFG. CONST. art. 3 (stating that no law may “contravene the tenets and provisions of the holy law of Islam”); BASIC LAW OF SAUDI ARABIA [Constitutution] art. 7 (“The rule in the Kingdom depends on the holy Quran and the Prophet’s Sunnah.”). 11. See COULSON, supra note 10, at 75. 2009] REEXAMINING INTERFAITH MARRIAGE IN ISLAM 745 necessary to understand the sources of Islamic law. This Part presents the generally accepted sources of Islamic law, and explains the hierarchy of those sources.12 Most modern Western countries have a utilitarian view of the role of government in society. The purpose of government is to serve the people. If people in the United States, for example, wish to see a law enacted, they appeal to their elected legislature, which may then enact the law as they see fit. While certain “inalienable rights”13 are recognized, the vast majority of laws governing society are citizen-made, created for specific purposes, and reflective of the overall opinions and values of the people. Society may enact, amend, or repeal its laws, as it deems necessary.14 Additionally, modern Western societies typically draw a bright line between things sacred and secular, allowing government to regulate public matters while fiercely protecting an individual’s prerogative regarding his own religious beliefs and practices.15 While many Western countries are predominantly Christian,16 they neither require nor endorse individual belief in Christianity.17 Such is not the case in many Islamic countries. The broad body of Islamic Law, known as Shari’a, draws no distinction between sacred and secular.18 In addition to setting forth God’s laws for prayer, fasting, and professing faith, Shari’a also deals with politics, economics, banking, trade, family law, evidence and procedure, sexuality, dress, hygiene, dietary laws, and criminal laws.19 To devout Muslims, the 12. The author acknowledges that this is a very simplified exposition of the sources of Islamic law. However, for the purposes of this Note, it is sufficient to establish a foundation for the divine origin of Shari’a and demonstrate the hierarchy and interplay of the sources of Islamic law. 13. See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). 14. See J.N.D. ANDERSON, ISLAMIC LAW IN THE MODERN WORLD 2–3 (1959). 15. See Harry D. Krause & David D. Meyer, What Family for the 21st Century?, 50 AM. J. COMP. L. SUPP. 101, 103 (2002) (“Of course, modern Western states generally guarantee that . parties may by and large do or not do what they wish or what their religion requires or allows . [T]he doctrine of separation of church and state—generally accepted in the Western World, even in states with nominally ‘established churches’—prohibits state endorsement of one religion over another.”). For more examples, see U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . .”); Elisabeth Zoller, Laïcité in the United States or The Separation of Church and State in a Pluralist Society, 13 IND. J. GLOBAL LEGAL STUD. 561, 563 (2006) (citing France’s December 9, 1905 Law Concerning the Separation of Church and State as stating “the Republic . recognizes no association of worship.”). But cf. KONGERIGET NORGES GRUNDLOV [Constitution] art. 2 (Nor.) (declaring that all inhabitants of the Kingdom of Norway have the right to free exercise of their religion, but also that the Evangelical Lutheran religion is the official religion of the State).